Wednesday, October 24, 2018

Rape and Abortion: Connected?

by Sherry F. Colb

In my Verdict column this week, I discuss a controversial website at the University of Washington, where victims of sexual misconduct can anonymously post the names of their assailants or harassers. Addressing the issue of how we might think about the existence of such a list, I drew an analogy between the list and coat-hanger abortions, as both are symptoms of larger phenomena. I went on to suggest that the solution to undesirable processes can sometimes be to offer alternatives to those processes--a willingness to criminally prosecute acquaintance rape as a matter of course, for example, and an available abortion provider who can terminate unwanted pregnancies in a safe and medically competent fashion.

In this post, I want to explore some further links between rape and abortion, because I think there are several. The issue of abortion appears to be more controversial than the issue of rape, so why would anyone want to talk about the two together in an effort to shed light on either one? In the abstract, I would agree that abortion is the more controversial of the two issues. But these questions are anything but abstractions for women who have encountered either sexual assault or an unwanted pregnancy or both. And in practical terms, both are the subject of significant controversy.How is rape controversial? It is controversial in that some people have in mind something quite narrow when they speak of it, while others have something broader in mind. The narrow understanding of rape encompasses an attack by a stranger on an unwitting victim, a victim who has perhaps taken all of the right precautions by avoiding promiscuity and by marrying a man who can protect her. When the stranger-rape of such a woman occurs, she can rely on community outrage and police support. She can expect to be treated with kindness and deference. No one will publicly accuse her of lying about what happened, absent extraordinary circumstances.

The broader definition, which feminists of various stripes embrace, defines rape almost entirely by the behavior of the rapist. Rape is forced or otherwise nonconsensual sexual intercourse. The broader definition has no qualifications that turn on whether the perpetrator and victim knew each other before, went out on dates, or married each other. It also asks nothing about the victim's prior sexual history with other men or with the perpetrator. None of these factors bears on the question whether the perpetrator raped the victim, because a prior relationship or an active sexual history do not constitute consent. A neighbor of mine once asked me, a bit incredulous, whether a husband could be guilty of raping his wife. Yes, I told him, he could, but my neighbor's question and tone spoke volumes.

Another thing that distinguishes the two camps (who hold to different definitions of rape) is related to the first (substantive) issue. Now, however, we focus on the process of proving that the perpetrator raped the victim, a fact that--for the feminist camp--is fundamentally about what the perpetrator did and not about what the victim did. The narrow definition camp typically holds that it is very hard to prove rape adequately and that it is important to take a victim's statements and testimony with a huge grain of salt. This camp asks for corroboration of the victim's account of events and treats a defendant's denial of guilt as powerful evidence of innocence. The phrase "he said/she said" likely originates in this camp, although it has unfortunately become so popular that even some feminists think that corroboration is necessary for a rape conviction. This skeptical approach tends, not coincidentally, to most enthusiastically confront acquaintance rape claims rather than stranger rape claims, strongly suggesting a substantive agenda regarding the scope of what we should call "rape."

Some of the people who oppose abortion offer a rape exception as an olive branch to those who are pro-choice: accept a ban on abortion and we will accept permission to terminate in the case of rape. Charles Camosy, in his book, Beyond the Abortion Wars, for example, makes such a proposal. But if we read the fine print, we find that women who wish to terminate a pregnancy on account of conception through rape must prove that they were in fact raped. Otherwise, of course, women will lie about rape, an assumption that might actually be fair if the only way to terminate a desperately unwanted pregnancy is to lie. On the other hand, most rape victims--especially those who know their assailants--stay silent about the attack. Given the widespread if false notion that a woman's word alone cannot prove rape, how will any ordinary rape victim go about proving that she qualifies for the rape exception?

Camosy is, of course, not alone among people who oppose abortion in believing that rape victims should get a pass, though problems of "proof" could render the exception purely theoretical. The reason for the popularity of the "rape exception," I suspect, has to do with what occurs when a man rapes and impregnates a woman. The man in that case basically hijacks his victim's reproductive system, first by raping her and then by forcing her to gestate and birth a child she never consented to conceiving or carrying. People who oppose virtually all abortions say that it is not fair to "murder" the child for the crimes of its father. But that points up an important parallel between rape and abortion that many overlook.

No one proposes a right to kill a one-year-old baby because he was the product of forcible intercourse between a rapist and the baby's mother. But an embryo or a fetus, by contrast to a baby, lives by physically invading and extracting what it needs--oxygen, vitamins, minerals, etc.--from the inside of a woman's body. People who say that "autonomy" cannot trump the right to life ignore the difference between autonomy--the right to throw one's fist--and bodily integrity--the right to stop unwanted cells, tissue, and organisms from further invading the inside of one's body. If the embryo or early fetus could live outside the womb, then there might be a right to remove it coupled with an obligation to remove it intact. But if the embryo or fetus lacks any chance of survival outside the womb, then the right to stop being physically and internally occupied and progressively intruded upon by the embryo or fetus necessarily entails the embryo's or fetus's death, either from lack of oxygen, poison, or disarticulation.

The right at issue, whether or not conception resulted from rape, is very much like the right not to be penetrated by anything or anyone against one's will. Just as a woman may kill a man to stop him from raping her (or to put an end to an already-in-progress rape), so then may a woman kill an embryo or fetus if that is the only way to terminate the physical intrusion that is pregnancy. Many will object to this analogy, because the rapist attacks his victim culpably and without her consent, while the zygote or embryo or fetus is innocent of any wrongdoing and may have been invited inside the woman (treating consent to sex as at least assuming the risk of pregnancy).

The rapist surely is culpable in a way that the embryo is not and indeed could not be. But the right to self-defense does not turn on the culpability of the assailant. It turns on necessity. If one needs to use deadly force to protect oneself against death or serious bodily injury (including rape), then one may do so, even if the threat comes from an aggressor--such as a "psychotic aggressor"--who is innocent of the harm he threatens to impose.

Rape victims have, meanwhile, never consented to carry a pregnancy for the rapist. This may account for the broad consensus on the rape exception. A pregnancy resulting from rape seems like a continuation of the rape itself. For women who become pregnant after consensual sex, though, consider the fact that while a person is having consensual sex, she may decide that she wants the sex to stop. She has a right, in that case, to have the other party withdraw. If he refuses to, then he becomes a rapist. Similarly, even if a person "consented" to a pregnancy at some point, if she decides she no longer wants to be internally occupied by a distinct, expanding, and demanding organism, she can take the steps necessary to end that occupation. In other words, giving consent to someone or something to be inside one's body does not mean forfeiting the right to withdraw that consent.

If a woman can make her pregnancy stop without killing the fetus--for example, if she is carrying a viable fetus--then she might have an obligation to terminate her pregnancy in a non-lethal manner. We might think of her as having a kind of "duty to retreat" if she can do so safely, instead of unnecessarily using deadly force to achieve bodily integrity. If killing her (innocent) assailant is necessary to the termination of her internal invasion, however, then the law should have nothing to say about the method by which she deploys deadly force.

Both rape and compelled pregnancy represent threats to a woman's bodily integrity. And consensual sex and wanted pregnancy can both represent blessings. Do rape and compelled pregnancy share anything else in common? Before I suggest one additional commonality, let me explain my choice of words here: I say "compelled pregnancy" because that is an accurate description of a pregnant woman's situation if the law prohibits her from terminating her pregnancy even though she wishes to do so. When anti-abortion folks speak of the law protecting the life of the unborn, they erase the pregnant woman's entitlement to remove unwanted inhabitants from her body. Being born already makes a difference not because "geography" is morally significant but because a born child does not physically intrude on anyone's bodily integrity. And in fact, a woman who does not want her baby--once he is not inside her body--can choose to give him up for adoption. A pregnant woman cannot do the same.

There is, however, another common feature of rape and abortion, beyond the threat to women's internal bodily integrity. That feature is stigma. Women who fall victim to sexual assault experience a stigma when people learn of their plight. So do women who have abortions. Women typically confide quietly in other women about a past sexual assault or an abortion. Why the stigma?

One easy answer for abortion is to observe that killing an "unborn child" (an embryo or a fetus) is a kind of murder, and murder properly occasions shame and stigma. But that answer leaves something to be desired. While everyone considers murder immoral, most Americans are ambivalent about abortion and regard the procedure--especially in the early stages of pregnancy--as something quite different morally from "murder." Meanwhile, the shame and stigma associated with abortion do not always accompany the killing of someone separate from oneself; abortion may thus generate greater stigma than actual murder. And there is no easy answer for why we stigmatize rape victims.

I would propose that the stigma associated with abortion and the stigma associated with rape are linked. In both cases, society learns something it prefers not to know. It prefers to pretend that pregnant women all give birth to their babies and that men have sex only with women who "want it." Abortion and rape are the ugly underbelly of sexual intercourse, not the stuff we celebrate in love songs. Women have abortions because they do not always want to have a baby. They experience rape because they do not always want to have sex, and what they do or do not want does not always matter to the man with the power to force them.

There was once a time when anything sexual would stigmatize women. Having consensual sex would pollute a previously pure body. Being raped would be just as contaminating to the woman, though she would not be blamed. Part of understanding stigma thus requires us to understand that the absence of blame does not eliminate shame or stigma. People with disgusting body odor or halitosis may not be blameworthy, but they nonetheless feel shame and suffer from everyone's desire to steer clear of them. Stigma in the absence of concrete signs like a bad odor can work this way as well; people may avoid the rape victim and look at her differently from how they saw her before they knew.

Terminating a pregnancy carries stigma as well. I think the stigma also connects with sex. Someone who wants to terminate her pregnancy has had sex. We do not know from her wish for an abortion whether the sex was or was not consensual, but the so-called "products of conception" that emerge from her body in the course of an abortion are testament to the sex that she had. There is stigma there, very much tied up in the sex-abortion connection.

Not everyone who opposes abortion even blames the woman for terminating. Some believe that she is a victim and that the real perpetrator is the abortion provider. But this "exculpatory" narrative in which the pregnant woman is in some sense innocent of the killing of her so-called unborn child does not relieve the woman of the stigma, just as rape does not. It clings to her anyway.

Let me explain, for those who wonder, why I said "so-called unborn child." Do I dispute that the embryo or fetus is an unborn child? Yes, I do. When a woman is pregnant, the human organism inside her body is unborn, because it has not been born, so that part of the anti-abortion phrase is accurate. But to describe an embryo as an unborn child is misleading and perhaps even dishonest. It suggests that the only difference between an embryo (the organism that dies in over 90% of abortions) and a child is birth. But we know that is false. We know that, because the whole reason for pregnancy is to turn a cell into a child, and an embryo--at first an undifferentiated mass of cells eventually connected to a placenta--lacks the rudiments of what makes a child a child. It would be more accurate to leave out the "unborn" part of the equation and instead describe the embryo or fetus as "undeveloped."

On the question of stigma, though, it is notable that women can now feel comfortable with others knowing that they have had sex outside of marriage. A man sleeping over at a woman's home or vice versa is no longer cause for shame in many circles. And yet the stigma of rape and the stigma of ending an unwanted pregnancy persist, though they likely originate in the same sexual stigma. Society once frowned upon women who had sex before marriage; women who were raped fell into this category of stigma, because the category was not fault-based, and women who had abortions necessarily fell into this category as well. But it is now only the most vulnerable of the group, the women who fall prey to sexual violence or feel the need to remove an unwanted embryo from inside their body, who suffer the stigma alone.

Some on the right show their compassion for women, using these two issues. They believe women who come forward to speak of being sexually assaulted, like Dr. Christine Blasey Ford, and they reach out to pregnant women who want to terminate their pregnancies. For the latter, they may offer financial support and friendship in the hopes that this will restore a woman's "natural" desire to have the baby.

But if this does not work, if the woman still wants her abortion, then her new right-wing friend will do her best to make this impossible. And if the result is that the pregnant woman visits a back-alley quack, well that's just tragic, isn't it? The reality is that women have been having abortions since ancient times, and midwives have long regarded abortion as part of their practice, not a contradiction--as some who oppose abortion suggest. Midwives of old understood the difference between an undeveloped embryo and a child. They understood the distinction between protecting a separate being from external harm and forcing a woman to house a human organism inside her body against her will.

To be compassionate to women is to understand the devastation that rape can do to a victim's spirit. And compassion also means eventually accepting that women will struggle against forcible pregnancy, not because they are deluded but because they are not. It is not yet a child. It is still a choice.

6 comments:

This post and the Verdict column are an excellent discussion, but there is a significant point that has been omitted, namely that in America today a majority of men and a large minority of women simply do not regard sexual assault as a problem or as even a disqualifying action by a man in pursuit of power. For them it is a joke, something to be laughed at as evidenced by the Trump rallies.

Consider the situation of North Dakota. After the revelations about Judge Kavanaugh the incumbent Democratic Senator voted against his confirmation, citing her support and sympathy for victims of sexual assault. Her Republican opponent not only supported Kavanaugh but declared that even if he did what he was accused of it was not a problem in his being confirmed to the Supreme Court.

As a result the candidacy of the Republican surged and he is now regarded as near certain winner. The message to politicians and government is clear, you do not have to take accusations of assault seriously, because a large portion of the populace does not take them seriously even if true.

Until this thinking changes none of the excellent suggestions like the ones in this post and the Verdict column will be meaningful. And the trend is just not good. The attitudes of Kavanaugh and Trump are a mirror on American thinking about sexual assault. The nation is not what we thought it was. It differs from the misogyny of say, Saudi Arabia only in degree, and not in principle.

I think David Ricardo's general comment is realistically true though the need of some to formulate a fantasy (Ed Whelan's "second rapist" scenario was rightly ridiculed but the only problem was he was too specific, it seems) where Dr. Ford could be respected to the degree she apparently was attacked but not by Kavanaugh (though enough dust was tossed to confuse even that) suggests a need to give lip service to #MeToo.

I won't try to comment on the complex argument of the main post though it is appreciated. Some with the same basic views might debate on specifics but such is how things go.

Why would you misrepresent my position? I clearly propose that, for the first part of pregnancy, *no evidence is required.* This has got me in hot water with a good number of pro-life activists, many of whom suggest (not without reason) that my proposal creates a set of people (prenatal children who are products of sexual violence) who are erased from moral and legal concern. (I try to address their objection by requiring evidence later in pregnancy.)

For those of us who are trying to fully honor both people--mother and child--in a pregnancy, we have a a very difficult row to hoe. It is one thing to straw-man us, but you blatantly misrepresented my position. Why would you do that?

Hello Charlie. I would prefer it if you would give me the benefit of the doubt rather than claiming that I "blatantly misrepresented" your position. If I were giving a more thorough account of your approach to rape, I would say that you wrote in your book that a woman who has been raped may have an RU-486 abortion by the eighth week of her pregnancy if she (a) signs an affidavit swearing (under penalty of perjury) that she was sexually assaulted, and (b) certifies that she underwent counseling. To be fair to me, that is not exactly a "no evidence is required" standard, because an affidavit is evidence, but that is a relatively permissive standard. Still there is at least one important limit: the method by which she may terminate. Though many women prefer a medical abortion, some opt for a surgical option, perhaps because the process does not drag out as much or because the hormones in RU-486 would make her feel sick. You view the medical abortion as an indirect abortion and therefore as potentially falling within the doctrine of double effect. I understand that logic, and I appreciate your flexibility about abortion because of the direct/ indirect distinction. Nonetheless, our legal prohibitions do not usually treat direct and indirect violence differently. "Purpose or knowledge" is the ordinary formula for a defendant's state of mind in "intent" crimes, and justifications tend to treat purpose and knowledge the same as well. For a woman who prefers a surgical abortion (notwithstanding the harassment on the way to the clinic entrance), your proposal eliminates that option. And a percentage of medical abortions fail, which would also leave a woman needing a surgical--direct--abortion, which you would bar.Most importantly, though, you would require proof of rape in court by a preponderance of the evidence in order for her to have an indirect abortion after eight weeks. That means that for women who (a) have irregular periods, (b) are in the obese category, (c) believe themselves to be infertile or on birth control, and/or (d) are in denial about the possibility of a pregnancy for a while, they will find themselves in category B and will need to go into court and contend with the presumption that the woman is lying about rape. Who knows what a court would require to persuade it that a petitioner really was raped? And what would you say to the women whose doctors post-8 weeks want to do a surgical abortion because it is much safer for the woman than inducing labor to be in compliance with St. Thomas Aquinas's doctrine of double effect?

Anyway, if you had asked me to clarify my description of your proposal, because you felt your concessions for the first 8 weeks were very important, I would probably have been moved to do that. Coming at me with an ad hominem accusation about blatantly misrepresenting your position, however, leaves me feeling like I need to defend myself from the accusation. By citing your work, I meant to show respect for your efforts to grapple with the difficult questions. My reference is critical, because the burden of proof in a courtroom as a prerequisite to abortion access imposes one of the traumatic features of rape cases on a woman who chose to avoid the courtroom and just wants to stop being pregnant with her rapist's issue. Notwithstanding my annoyance at your characterization of my post, I would be willing to add a sentence explaining some of the nuance in your position that the post now omits. I can assure you that I had no intention of misrepresenting your view, blatantly or otherwise. For what it's worth, eight weeks is not a lot of time in the aftermath of a crime.